WILLFUL CONCEALMENT DOES NOT ARISE FROM FAILURE TO DECLARE MAINTENANCE MEDICATION DURING PEME

Willful concealment by seafarer of pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) renders him liable for misrepresentation and he shall be disqualified from any compensation and benefits.

Philsynergy Maritime, Inc. and/or Trimurti Shipmanagement Ltd. Vs. Columbano Pagusan Gallano, Jr.
G.R. No. 228504, June 6, 2018

PEME; Willful concealment; Third doctor; Company-designated physician; 120-day rule; 240-day rule

Facts:

Columbano Pagunsan Gallano, Jr. (Gallano) was employed by Philsynergy Maritime, Inc. (Philsynergy), for and in behalf of Trimurti Shipmanagement Ltd. (Trimurti; collectively, Philsynergy, et al.), as Master (or Ship Master) on board the vessel M.V. Pearl Halo under a six (6)-month employment contract. After undergoing the required pre-employment medical examination (PEME) where the company-designated physician declared him fit for sea duty, Gallano, who was then 62 years old, boarded the vessel.

Thereafter, while in the performance of his duties, Gallano felt a sudden numbness on the left side of his body and noticed that his speech was slurred. He was immediately provided first aid and his condition allegedly improved after taking an Isordil 10 tablet which Gallano had personally brought to the vessel. On the next day, his symptoms recurred, but which did not improve despite taking another dose of Isordil. Thus, Gallano was brought to a local hospital in Poro, New Caledonia, where he was confined for eleven (11) days and underwent physical therapy. His CT scan (computed tomography scan) revealed middle cerebral artery deep right infarct without associated hemorrhagic alteration, while his MRI (magnetic resonance imaging) showed “ischemic cerebrovascular accident stroke ischemique, right middle deep lobe.”

As a result, Gallano was repatriated on October 23, 2012 for further medical treatment and referred to a company-designated physician, who diagnosed him to be suffering from “Cerebrovascular Infarct Middle Cerebral Artery, Right [and] Hypertension.”

The foregoing illnesses were declared by the company-designated physician to be not work-related, ratiocinating that the risk factors for cerebrovascular infarct (brain stroke or cerebrovascular accident [CV A]) were hypertension, Diabetes Mellitus, smoking, lifestyle, dyslipidemia, family history, age, and sex, while the cause for hypertension was multifactorial in origin which included “genetic predisposition, poor lifestyle, high salt intake, smoking, Diabetes Mellitus, age, and increased sympathetic activity.”

After series of follow-up check-ups, the company-designated physician, in a Medical Report dated March 9, 2013, noted that Gallano’s treadmill stress test already showed normal results and his blood pressure controlled. In addition, the company-designated physician opined that his cardiovascular condition has stabilized, but nonetheless advised him to continue home exercises/rehabilitation and medication. Thus, Gallano was directed to undergo a repeat laboratory examination in time for his next follow-up session. Records, however, are bereft of showing that the foregoing directives were complied with.

Meanwhile, the company-designated Cardiologist explicated that the medicine (Isordil) brought by Gallano on board the vessel is a medication used to treat patients with angina (chest pain), and that while the latter denied taking any maintenance medications, the company-designated Cardiologist opined that possession of the same suggests that “he [(Gallano)] may be experiencing some symptoms for which he was given that medications previously.”

On the other hand, claiming that his physical condition did not improve after having suffered a brain stroke on board M.V. Pearl Halo while in the performance of his duties, and that more than 120 days had lapsed from the time he was repatriated, Gallano sought for the payment of total disability benefits from Philsynergy, et al., which the latter refused. Thus, he filed a complaint for total permanent disability benefits, sickness allowance, damages, and attorney’s fees against Philsynergy, et al. and Philsynergy, et al.

LA Ruling:

The Labor Arbiter (LA) ruled in favor of Gallano and ordered Philsynergy, et al. to pay the latter US$60,000.00 in accordance with the 2010 PO EA-SEC, as well as ten percent (10%) attorney’s fees.

The LA held that the provision of the CBA on disability benefits that was incorporated in Gallano’s employment contract was inapplicable since it covered only those disabilities resulting from accidental injury. It likewise ruled out fraudulent concealment on the part of Gallano for lack of proof showing that he was already suffering from high blood pressure that triggered his brain stroke or that he was aware of the same at the time he boarded the vessel.

In fact, Gallano’s PEME showed a normal blood pressure reading which only proved that the latter did not have a pre-existing medical condition at the time he boarded the vessel. Even on the assumption that Gallano’s illness was a pre-existing condition given that he carried on board medication to address the same (i.e., Isordil), such was not conclusive proof that he has suffered or was suffering from an elevated blood pressure since he may have carried them as a handy security in case of an unforeseen instance of elevated blood pressure.

The LA likewise ruled that Gallano’s diagnosed hypertension was work-related since it is listed as an occupational disease under Section 32., B of the 2010 POEA-SEC, and that it was not capable of partial disability assessment. Aggrieved, Philsynergy, et al. appealed to the NLRC.

NLRC Ruling:

The NLRC affirmed the LA ruling with modification ordering Philsynergy, et al. to solidarily pay Gallano.

The NLRC agreed with the LA that there was no concealment on the part of Gallano since his PEME showed fitness for work and normal blood pressure with no heart problem. It also ruled that his possession of Isordil did not ipso facto mean that he was hypertensive and under medical maintenance, and that even if Gallano’s hypertension pre-existed his employment; such would not bar him from claiming disability compensation as he was clearly· asymptomatic of any cerebrovascular events before he boarded the vessel and that its symptoms only manifested at the time he was subjected to the strains of work and while in the performance of his duties.

The NLRC gave more weight to the “unfit to work” findings of Gallano’s independent physician given that even the company-designated physician failed to declare Gallano fit to work as evidenced by his last medical report which showed the latter’s need for continued rehabilitation and medication. Lastly, it pointed out that the CBA contemplates all kinds of accident or unforeseen events that cause physical harm or injury to the body, and that the illness suffered by Gallano was an unforeseen event that physically injured the brain.

The NLRC denied Philsynergy, et al.’ motion for reconsideration and granted Gallano’s motion ordering Philsynergy, et al. to pay Gallano attorney’s fees. Hence, the matter was elevated to the CA via a petition for certiorari.

CA Ruling:

The CA found no grave abuse of discretion on the part of the NLRC in awarding total and permanent disability benefits in favor of Gallano pursuant to the CBA. The CA agreed that Gallano’s brain stroke was work-aggravated/related which rendered him incapacitated to work. It noted the lack of showing that Gallano suffered from any form of ailment prior to his cardiovascular accident, and that Philsynergy, et al. failed to refute the latter’s claim that the nature of his work constantly exposed him to varying circumstances, such as extreme hot and cold temperature, harsh weather conditions, and the mental stress associated with his work as Ship Master.

It likewise observed that the company-designated physician failed to declare Gallano fit to work despite the lapse of 120/240 days, rendering his disability as total and permanent. Finally, the CA sustained the award of attorney’s fees as Gallano was clearly compelled to litigate to protect his interests.

Undaunted, Philsynergy, et al. moved for reconsideration but the same was denied. Hence, the petition before the SC.

Issue/s:

Whether or not the taking of maintenance medicine constitutes willful concealment of pre-existing medical condition (hypertension) during the PEME which disqualifies claim for disability

Whether or not advice of company-designated physician to continue home rehabilitation is sufficient justification to extend the 120-day period to 240 days

Whether or not the seafarer is under obligation to obtain the certification of a third doctor when the finding of company-designated is made beyond the 120-day period without sufficient justification for extension

SC Ruling:

The SC denied the petition.

The SC held that pursuant to the 2010 POEA-SEC, an illness shall be considered as pre-existing if prior to the processing of the POEA contract, any of the following conditions is present: (a) the advice of a medical doctor on treatment was given for such continuing illness or condition; or (b) the seafarer had been diagnosed and has knowledge of such illness or condition but failed to disclose the same during the PEME, and such cannot be diagnosed during the PEME.

The Labor Code of the Philippines 2018 Edition (re-numbered and updated)

In this case, the evidence on record is devoid of any indication that any of the conditions is present. Isordil (isosorbide dinitrate) tablets are taken for the prevention of angina pectoris or chest pain due to coronary artery diseases. It is, however, not a medication directly used for hypertension, which illness Philsynergy, et al. claim Gallano to be suffering from prior to his engagement, as well as the reason for his repatriation.

Hypertension refers to persistently high blood pressure, regardless of the cause, and because it usually does not cause symptoms for many years -until a vital organ is damaged -high blood pressure has been called the silent killer. To properly determine whether a person suffers from hypertension, it is imperative that he or she undergoes medical check-ups, and consequently, procures a diagnosis from a medical doctor. In this case, no such diagnosis was presented by Philsynergy, et al. Moreover, there was no clear showing that Gallano was taking Isordil as maintenance medication for his hypertension or that it was the appropriate medication for his condition that gave rise to his brain stroke.

At the most, Philsynergy, et al. submitted the opinion of a specialist, claiming that Gallano may have previously experienced some symptoms of hypertension for the bare reason that he had with him Isordil. Clearly, this opinion deserves scant consideration as the same is clearly tentative and speculative in nature. In the final analysis, Philsynergy, et al. failed to demonstrate that Gallano’s act of carrying Isordil per se conclusively established the fact he had actual knowledge of his medical condition, and consequently, concealed the same in his PEME.

Related: Fraudulent Concealment

At any rate, it is well to note that had Gallano been suffering from a pre-existing hypertension at the time of his PEME, the same could have been easily detected by standard/routine tests conducted during the said examination, i.e., blood pressure test, electrocardiogram, chest x-ray, and/or blood chemistry. However, Gallano’s PEME showed normal blood pressure with no heart problem, which led the company-designated physician to declare him fit for sea duty.

Records show that Gallano’s brain stroke was brought about by his hypertension which occurred only while in the performance of his duties as a Ship Master on board M.V. Pearl Halo. There was no indication that Gallano was known to be previously suffering from hypertension, and considering further that his last PEME showed normal blood pressure, chest x-ray and ECG results, his illnesses and the resulting disability were correctly declared to be compensable.

When a seafarer suffers a work-related injury or illness while on board the vessel, his fitness or degree of disability shall be initially determined by the company-designated physician. However, the seafarer is not absolutely bound by the findings of the company-designated physician as he is allowed to seek a second opinion and consult a doctor of his choice. In case of disagreement between the findings of the company-designated physician and the seafarer’s private physician, the parties shall jointly agree to refer the matter to a third doctor whose findings shall be final and binding on both.

Citing Philippine Hammonia Ship Agency, Inc. vs. Dumadag, the Court held that the seafarer’s non-compliance with the foregoing conflict-resolution procedure results in the affirmance of the fit-to work certification of the company-designated physician. However, a seafarer’s compliance with such procedure presupposes that the company-designated physician came up with an assessment as to his fitness or unfitness to work before the expiration of the 120-day or 240-day periods provided for by law.

Thus, in Kestrel Shipping Co., Inc. vs. Munar, the Court emphasized that absent a certification from the company-designated physician, the seafarer has nothing to contest and the law steps in to conclusively characterize his disability as total and permanent.

In the instant case, the SC held that there is no showing that Gallano received a timely conclusive and definitive assessment of his ailment. The previous medical report issued by the company-designated physician which, other than the advice to continue rehabilitation and medications, failed to show that further medical treatment was necessary to address Gallano’s temporary total disability, thus further discounting the justification to extend the 120-day period to 240 days.

Absent the required certification from the company-designated physician, the seafarer has therefore nothing to contest and perforce, negates the need for him to comply with the third-doctor referral provision under Section 20 (A) (3) of the 2010 POEA-SEC. As case law states, without a valid final and definitive assessment from the company designated physician within the 120/240-day periods, the law already steps in to consider seafarer’s disability as total and permanent.